Bench Memos

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Ed Whelan’s Excellent Testimony


When transcripts become freely available, be sure to track down our Bench Memos colleague Ed Whelan’s excellent testimony from yesterday evening. You can see his draft remarks here, but the back-and-forth is also worth reading.

As today’s WSJ explains, Democratic senators have used this confirmation process to treat us to sanctimonious lectures on the sins of the Roberts Court. Exxon Shipping v. Baker and Ledbetter v. Goodyear Tire & Rubber Co. played starring roles in this Democratic cartoon, which casts John Roberts and Sam Alito as the new Cobra Commander and Destro.

Unlike the senators, Whelan has actually read those decisions, and his rebuttal of their weak arguments provided much-appreciated relief from the vapid and hollow charade that Kagan treated us to on Tuesday and Wednesday. For instance, on Ledbetter:

Ledbetter has been a cause célèbre of the Left, as a result of this same elementary misunderstanding. As Stuart Taylor has written, “Obama and other Democrats were able to make the court’s ruling against Ledbetter seem outrageous only by systematically distorting the undisputed facts.”

As for Exxon:

Senator Whitehouse’s discussion of Exxon Shipping v. Baker suffers from a few unfortunate omissions. First, Senator Whitehouse does not disclose that the author of the majority opinion was the liberal Justice Souter. Second, he does not see fit to note that Justice Ginsburg, in dissent, described Justice Souter’s opinion as “well stated and comprehensive” and acknowledged that the question in the case “is close.”

Kagan was right back in the day. This process has become essentially worthless in terms of exposing the senators or the American people to the nominee’s views on the law and the Constitution. Whelan’s frank and educated dialogue with the senators showed that it doesn’t have to be that way.


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